Tuesday, November 20, 2007

Safe in whose hands?

MAKING APRIL 28 A FAMILY DAY.Unknown building worker statue, and wreath from UCATT

FELLOW-blogger Dave Osler often has a quite different take than me on matters of theory and the Left, but on straightforward class issues he can see straight to the point:

"Two employees of Network Rail - the company that maintains Britain's network of railway tracks - have been arrested on suspicion of manslaughter in connection with the Grayrigg rail crash in February, in which an 84 year old woman died.Meanwhile, the Health and Safety Executive has decided not to bring a criminal prosecution against the management of Stoke Mandeville NHS trust, despite two outbreaks of superbug clostridium difficile between October 2003 and June 2005, which killed 33 people.The message here is quite obvious. Only manual workers have to account for the consequences of their negligence. Wear a decent suit and - nine times out of ten, anyway - you'll get away with it".

This class view of law and safety matters has been reinforced by an academic study just released, and from a university which is well-known for its links with the world of business:

Courts disqualify company directors risking pounds almost 300 times more often than those risking peopleResearch shows that courts disqualify company directors risking pounds almost 300 times more often than directors risking people’s health and safety.Research published this week by the University of Warwick’s School of Law for the Health and Safety Executive, has found that for almost 20 years company directors were almost 300 times more likely to be disqualified by a court from acting as a director for insolvency or other financial reasons than they were for breaching health and safety rules.

"The report, entitled "A survey of the use and effectiveness of the Company Directors Disqualification Act 1986 as a legal sanction against directors convicted of health and safety offences", by Professor Alan Neal and Professor Frank Wright of the Employment Law Research Unit of the University of Warwick, looked at the use made of powers contained in the Company Directors Disqualification Act 1986 in relation to disqualification orders related to health and safety failures in the management of companies. In particular, the research considered the effectiveness of director disqualification under the 1986 Act as a legal sanction against directors convicted of health and safety offences. The University of Warwick researchers found that the provisions of the Act were very clear, and needed no further clarification or additional legislation in order to provide adequate sanctions for breaches of health and safety duties. What they did find, however, was a surprising failure to utilise those very clear sanctions.

"From the records made available to them, the researchers were able to identify just ten directors who had been disqualified for health and safety reasons between the date when the 1986 Act took effect and the end point of their study in 2005. At less than one a year, this compares markedly to the overall total of some 1500+ company directors disqualified by the courts each year for insolvency or other financial reasons.However the University of Warwick team were able to establish clear reasons as to why there had been so few disqualifications even though the 1986 made this available as a clear option.In interviews conducted with HSE operations directors and their counterparts within local authorities, there emerged a surprisingly low level of awareness of the 1986 Act provisions.

"University of Warwick Professor Alan Neal said, 'We found a marked absence of awareness even of what potential powers may be contained within the 1986 Act.'

The University of Warwick team also concluded that much more could have been done to brief prosecution teams in relation to their ability to seek disqualifications and the desirability of actually doing so. In particular, they suggested that steps needed to be taken to develop and draw up guidelines for prosecutors in relation to appropriate circumstances in which an application for a disqualification order might be made to a court. There should also be a direction to all prosecutors (whether HSE, local authorities, or those acting as "agents" for the prosecuting authorities) in relevant cases of health and safety management shortcomings that any court which returns a guilty verdict in relation to a relevant indictable offence should be reminded of the powers available under the 1986 Act.

The Warwick Professors also recommended that arrangements should be put in place to supervise and monitor all health and safety prosecution files, with a view to identifying cases where it would be appropriate to make application for a disqualification order, and that, in any event, a formal return should be made by all prosecutors in respect of the outcomes of any cases handled by them before the courts. The researchers concluded that, provided that these recommendations were introduced speedily, there was no reason to call for amendment of the existing powers contained in the 1986 Act. However, it was observed that, in the longer term, there would be a need for the Health and Safety Commission and the Health and Safety Executive to engage actively in the development of guidelines for boardroom and director conduct in relation to health and safety issues.Since the research was completed, the Health and Safety Commission have given detailed consideration to the Warwick report and have responded quickly. The Commission have recognised the need for inspectors to seek greater use by the courts of director disqualification as a penalty, and new instructions on this matter have now been issued to inspectors. Last month, Professor Wright joined Lord McKenzie, Minister for Health and Safety, at the Institute of Directors in London, to launch the latest IOD/HSE Guidance on Leadership Actions for Directors and Board Members. Meanwhile, on 27 July 2007 the government’s Corporate Manslaughter and Corporate Homicide Act 2007 was passed, with provisions due to come into force on 6 April 2008.

Among those who have steadily pressed for action against company directors over safety breaches and particularly fatalities has been the Construction Safety Campaign(CSC). With the government backing away from promised action on corporate manslaughter, and cutting back on the Health and Safety Executive (HSE)'s already inadequate resources for inspections, the need for campaigning remains as strong as ever.

Last week I was at a meeting at the London Hazards Centre where I heard about the possible impact of HSE cuts on site inspections in what is still probably Britain's most dangerous industry, construction (a position in which it is only possibly rivalled by farming, or fishing).

Despite the Construction Safety Campaign's pioneering role, both in making a safety a public issue and involving people like the families of accident victims in their campaigns, it seems to be coming under pressure now to hand over responsibility for initiatives, and marking Workers Memorial Day to union officialdom. That could be a pity. True the unions have offices, staff, lawyers and resources , and as trades unionists themselves the CSC members will be only too glad to see more of these put into campaigning on safety.

They have not taken a narrow view either, despite the particular dangers in construction. For instance friends and relatives of Simon Jones, who was killed in his first hour working on Shoreham docks (decapitated by a crane grab that shouldn't have been in use) were welcomed to join CSC campaigners demonstrating at the HSE a few years ago. More recently the mother of a young man killed in Battersea by a falling crane, though he was not working on the site but was outside his home, was able to speak at the Workers Memorial Day event. The CSC has helped and encouraged the Battersea community-based crane safety campaign

Union officials have been slow to realise the importance of involving people in this way. They have been known to ask grieving relatives or those affected by asbestos whether a man had been a member of their union before being willing to take up the case. And though more willing to join with Construction Safety Campaign efforts in the past few years than they were originally, some union officials seem still too concerned with competing for status and turf in a way that rank-and-file workers find exasperating, and which can only be a turn-off for the public, if not a bad joke.

This year's workers' memorial day march ran into problems at the planning stage because, hearing that it was proposed to culminate in a rally at Tower Hill, by the memorial to the unknown building worker, regarded as a UCATT building union spot, somebody from my own TGWU Unite union (which also has members in the building industry) insisted the march must stop en route at a TGWU memorial - which happened to be that of Ernest Bevin, one-time union leader, wartime Minister of Labour responsible for conscripting workers for the mines, Labour's post-war Foreign Secretary, colonialist and Cold Warrior.

(Some people go on about "Leninists", I am not over-fond of Stalinists, but I sometimes wonder if there's not a much more shady lot around whom we should investigate, the Bevinists!)

Difficult as they find it co-operating with other unions, some union leaders insist against all the odds that workplace safety can be achieved in "partnership" with management. They don't like initiatives coming up from the rank-and-file, but are all too ready to listen and co-operate with the government. Next year's Workers' Memorial Day will come only a few days before Greater London elections, and the pressure is already on to play down May Day celebrations and anything else that might distract from "stopping the BNP", or, in reality, working for Labour. Surrendering the day to officialdom could be fatal.